The Case of the Apothecary's Tomb

The text of this article was originally published by SCOLAG in their August 2009 issue (no. 382) and is repeated here with their kind consent. Any errors or omissions are of course the author's.

THE CASE OF THE APOTHECARY’S TOMB

John and Joanna McCoach v The Keeper of the Registers of Scotland and City of Edinburgh Council, Lands Tribunal for Scotland, LTS/LR/2006/03, 19 December 2008 (unrep. )

IntroductionIn the quiet Edinburgh street of Chamberlain Road, not far from Holy Corner, south of the Meadows, lies a modest monument to one John Livingstone. Sometime owner of the Greenhill Estate and reputed to be an apothecary and botanist, it seems that he died in 1645 of the Black Death. His “tomb” is a square area of four substantial stone walls, open to the sky and fronted by a garden. Not large, at about 24 feet across and in whole about 106 square metres, it is a pleasant place to rest in quiet contemplation of mortality in the face of global pandemics.

When first erected the tomb may have lain in open countryside, no less an authority than Lord Cockburn having observed that in his 1780’s childhood there were very few fences south of the Meadows, and “the lands of Grange, Canaan, Blackford, Braid, Mortonhall and many other now enclosed properties, were all, except in immediate connection with the mansion houses, unenclosed”. Victorian development changed all that, and in 1851 there was a disposition of neighbouring land in Greenhill Gardens for a house to be built on that new street, the land being bounded partly by the walls of the tomb. Another disposition in 1856 was made in similar terms of subjects at 1 Chamberlain Road. The house on those subjects eventually became a nursing home, but in 2004 the owners decided to sell it. The buyers were Mr & Mrs McCoach for use as their home. The conveyance gave rise to a first registration of the subjects in the Land Register.

It must have surprised the deceased that his tomb thereafter became the focus of legal proceedings of some local notoriety, and of no little legal complexity. The practitioner may wish to take special note of what the case tells us about the degree of carelessness which may justify the Keeper in rectifying a registered title under the Land Registration (Scotland) Act 1979 (“the Act”), and of what the Tribunal had to say about remedies had the appeal succeeded.

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